Memoranduim of Nondelegation Doctrine - Granite Grok

Memoranduim of Nondelegation Doctrine

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In New Hampshire A Declaration of Rights of The People of The State of New Hampshire March 4, 1778.

“The whole and entire power of government of this State is vested in, and must be derived from, the people thereof, and from no other source whatsoever.”

 “The future Legislature of this State shall make no laws to infringe the rights of conscience, or any other of the natural, unalienable rights of men, or contrary to the laws of God.”


The Constitution of New Hampshire as consented too by the inhabitants of New Hampshire, was ratified in 1783 and Part II form of government, Article 5, provides that “the legislative power of the State of New Hampshire is vested in a senate and house of representatives” and that “the ‘legislative power’ has been delegated by the Constitution that only the legislature may judge for the benefit and welfare of this State, and for the governing and ordering thereof, and of the subjects of the same…”


Part II Art 5:

“And farther, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defense of the government thereof,”…


The delegation and separation of powers in the Constitution of New Hampshire our protected by: Part I, Bill of Rights, Article XII, Article XV, Article XXIX and Article XXXVII.


Article XII:

But no part of a man’s property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. Nor are the inhabitants of this State controllable by any other laws than those to which they, or their representative body have given their consent.

Article XV:

 No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land;

Article XXIX:

The power of suspending the laws, or the execution of them, ought never to be exercised but by the Legislature, or by authority derived therefrom, to be exercised in such particular cases only as the Legislature shall expressly provide for.

Article XXXVII:

In the government of this State, the three essential powers thereof, to wit, the Legislative, Executive, and Judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the Constitution in one indissoluble bond of union and amity.

 The following opinions were expressed by the Michigan Supreme Court on non-delegation doctrine of a certified question from the federal court on emergency orders on, October 2, 2020:

“The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.” Locke, Two Treatises of Government (New York: New American Library, Laslett ed, 1963), pp 408-409. Accordingly, “[o]ne of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.” Cooley, Constitutional Limitations (1886), pp 116-117.

“[T]he principal function of the separation of powers . . . is to . . . protect individual liberty[.]” Clinton v City of New York, 524 US 417, 482; 118 S Ct 2091; 141 L Ed 2d 393 (1998) (Breyer, J., dissenting). “ ‘[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ ” 46th Circuit Trial Court v Crawford Co, 476 Mich 131, 141; 719 NW2d 553 (2006), quoting The Federalist No. 47 (Madison) (Rossiter ed, 1961), p 301. And as Montesquieu explained, “[w]hen the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Baron de Montesquieu, The Spirit of the Laws (London: J. Nourse and P. Vaillant, 1758), Book XI, ch 6, p 216.

“Finally, the durational scope of the delegated power also has some relevant bearing, in our judgment, on whether the statute violates the nondelegation doctrine. Of course, an unconstitutional delegation is no less unconstitutional because it lasts for only two days. But it is also true, as common sense would suggest, that the conferral of indefinite authority accords a greater accumulation of power than does the grant of temporary authority.”